About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 127
|
|
Stallion Security (Pty) Limited v Van Staden (526/2018) [2019] ZASCA 127; (2019) 40 ILJ 2695 (SCA); 2020 (1) SA 64 (SCA) (27 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 526/2018
In
the matter between:
STALLION
SECURITY (PTY)
LIMITED APPELLANT
and
DALEEN
VAN
STADEN RESPONDENT
Neutral
citation:
Stallion Security v Van Staden
(526/2018)
[2019]
ZASCA 127
(27 September 2019)
Coram:
Leach, Mbha, Dambuza and Van der Merwe JJA and Hughes AJA
Heard:
23 August 2019
Delivered:
27 September 2019
Summary:
Delict – claim for loss of support – vicarious liability
of employer – employee committed murder entirely for
own
purposes – test is whether the delict was nevertheless
sufficiently closely linked to the business of the employer –
development of the law to recognise that the creation of risk by the
employer is a relevant consideration in determining the required
link
– employer liable.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Brand
AJ sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Van
der Merwe JA (Leach, Mbha and Dambuza JJA and Hughes AJA concurring)
[1]
On Monday 3 November 2014, Mr Ronald Mkhululi Khumalo, an employee of
the appellant, Stallion Security (Pty) Ltd (Stallion),
murdered Mr
Deon van Staden (the deceased), the husband of the respondent, Ms
Daleen van Staden. The cardinal issue in the appeal
is whether
Stallion is vicariously liable for the resultant loss of support
suffered by Ms van Staden. The Gauteng Division of
the High Court,
Pretoria (per Brand AJ) held that it was, but granted leave to appeal
to this court.
The
facts
[2]
Stallion provides security services to its customers. For this
purpose it employs security guards, supervisors and managers.
Bidvest
Panalpina Logistics (Pty) Ltd (Bidvest) contracted Stallion to
provide security services at three of its premises, namely,
two
warehouses and its head office situated at 20 Wrench Road, Isando
(the head office). The deceased was employed at the head
office as a
financial manager.
[3]
The principal obligation of Stallion in terms of its contract with
Bidvest was to provide access control to the premises. At
the head
office, five security guards were posted during the day and three
were on duty for the night-shift. A site supervisor
oversaw the
security guards at the head office. A site manager, in turn,
supervised the Stallion personnel and operations at all
three
premises. None of these officers were issued with firearms. Unlike
the other officers, the site manager did not wear a uniform.
Bidvest
employed a risk manager, who conveyed its requirements in respect of
security services to the site manager.
[4]
The Bidvest head office staff gained access to the office area at the
premises by way of a biometric security system. This system
provided
access (which was recorded) upon recognition of a fingerprint placed
against a pad. It did not allow the security guards
to access the
office area. The site supervisor and site manager were, however,
registered on the biometric system and were thus
enabled to access
the office area.
[5]
By 2012 Mr Khumalo served as Stallion’s site supervisor at the
head office. He performed well in that position, to the
extent that
the risk manager of Bidvest (Mr Harmse) recommended him for the
position of the site manager of the three premises.
At about the end
of 2013, Stallion promoted Mr Khumalo to this position.
[6]
As the site manager, Mr Khumalo’s duties included the regular
inspection of the security guards on duty. In doing so,
he was also
required to make unannounced visits to the premises after business
hours. Mr Khumalo was, in addition, tasked with
inspecting the
interior of the building, particularly to ensure that the emergency
exits were closed at night (they were opened
during the day for
ventilation purposes). Mr Khumalo was provided with a bypass or
override key for this purpose. The override
key allowed access to the
office area without the use of the biometric system and therefore
without record thereof. The override
key was also intended to be used
to gain access to the office area in the event of a power failure.
Only Mr Khumalo was entrusted
with this override key.
[7]
A month or so prior to November 2014, Mr Khumalo started to appear
unkempt. He often did not turn up for work, claiming that
he had been
ill. He did not report for duty on 30 October 2014 or on any day
thereafter. Upon an enquiry by Mr Harmse, Stallion
informed him that
Mr Khumalo was ill. On the morning of 3 November 2014, Mr Harmse
requested Stallion to remove Mr Khumalo from
his position. By then,
however, Mr Khumalo had effectively been placed on sick leave. In his
subsequent statement to the police,
Mr Khumalo said that he had
borrowed money from certain persons and that, when he failed to repay
the money, those persons ‘started
hurting [him]’. It
appears that this explained the change in Mr Khumalo’s
behaviour and had a significant influence
on his decision to commit
the unlawful acts that followed.
[8]
Mr Khumalo knew the deceased often worked late. He had also heard
that Bidvest kept a petty cash box in the office area. He
decided to
rob the deceased and to attempt to locate the petty cash box. For
this purpose he ‘hired’ a firearm from
a co-employee.
This took place on Wednesday, 29 October 2014. He went to execute his
plan both the next day and the day thereafter,
but apparently did not
have the heart to go through with it.
[9]
On the fateful Monday Mr Khumalo went to the head office at about
midday, armed with the firearm that I have mentioned. He observed
that the deceased was at work. He waited until about 18h00, and then
entered the head office building via an emergency exit on
the second
floor. He moved to the first floor, where the office of the deceased
was situated. He gained access to the office area
on the first floor
with the use of the override key. He entered the office of the
deceased and demanded cash from him at gunpoint.
The deceased knew Mr
Khumalo from work. The deceased asked Mr Khumalo why he was doing
this. According to Mr Khumalo he related
‘the whole story of me
owing people money’ to the deceased. Mr Khumalo said that he
needed the amount of R50 000.
The deceased said that he did not
have the keys of the safe with him and indicated that he could only
assist him with an amount
of R35 000 that he had in his personal
bank account. Mr Khumalo coerced the deceased to make an electronic
transfer of that
amount into his bank account.
[10]
Thereafter Mr Khumalo escorted the deceased out of the building. He
walked behind the deceased and, carrying the firearm, forced
the
deceased to open a door of the office area with the use of the
biometric system. They exited the building through a different
emergency exit and moved to where the deceased’s car was
parked. Upon the instruction of Mr Khumalo, the deceased drove to
the
vicinity of the Eastgate shopping complex.
[11]
When the car came to a standstill near Eastgate, so Mr Khumalo said,
‘it came to [his] mind that [the deceased] was going
to call
the police’. Mr Khumalo then shot and killed the deceased, got
out of the car and ran away. He was apprehended shortly
afterwards,
but later escaped from custody. Subsequent information caused him to
be presumed dead.
[12]
Ms Van Staden sued both Stallion and Mr Khumalo for delictual damages
consisting of loss of support as a result of the death
of the
deceased. Her claim against Stallion was founded only on vicarious
liability for the wrong committed by Mr Khumalo. For
the reasons
mentioned, the trial proceeded only against Stallion. Ms Van Staden
presented the evidence of Mr Harmse and a police
officer who
introduced a detailed statement of Mr Khumalo into evidence. Video
footage of parts of the incident obtained from the
security cameras
at the head office, was also admitted into evidence. Stallion closed
its case without leading any evidence.
[13]
The court a quo, quite correctly, held that the intentional wrongs of
Mr Khumalo were committed entirely for his own purposes.
Citing
authority that I shall return to, it held that the killing of the
deceased was nevertheless sufficiently linked to Mr Khumalo’s
employment with Stallion for it to be held vicariously liable for the
loss suffered by Ms Van Staden. In this regard the court
a quo
essentially relied on the strong causal link between the employment
of Mr Khumalo and the murder of the deceased, the risk
of abuse
created by his employment and the contractual duties that Stallion
owed to Bidvest through Mr Khumalo. The quantum of
damages having
been agreed, the court a quo granted judgment in favour of Ms Van
Staden in the amount of R1 680 000, interest
thereon and costs
of suit. The appeal lies against this order.
The
law
[14]
The general principle is that an employer is vicariously liable for a
wrong committed by an employee during the course or scope
of his or
her employment. As Greenberg JA explained in
Feldman
(Pty) Ltd v Mall
,
[1]
it makes no difference whether the words the ‘course’ or
‘scope’ (or even ‘sphere’) are used
in this
context.
[2]
The faultless
liability of an employer originates from Roman law and is founded on
considerations of public policy.
[3]
One of the first formulations of the policy underlying vicarious
liability, is found in the early case of
Hern
v Nichols,
[4]
referred to by Watermeyer CJ in
Feldman.
[5]
The remarkably concise report of this case reads:
‘
Case
for a deceit; the plaintiff set forth, that he bought several parcels
of silk for ----- silk, whereas it was another kind of
silk, and that
the defendant well knowing this deceit sold it him for ----- silk. On
trial, upon not guilty, it appeared that there
was no actual deceit
in the defendant, but in his factor beyond sea; the doubt was, if
this deceit could charge the merchant.
Holt
C.J. held the merchant answerable for the deceit of his factor, tho’
not criminaliter, yet civiliter; for it is more
reason, that he, that
puts a trust and confidence in the deceiver, should be a loser, than
a stranger. And upon this opinion the
plaintiff had a verdict.’
Because
it is underpinned by public policy, the law in respect of vicarious
liability of employers did not remain stagnant and has
substantially
developed over time.
[15]
In cases where the employee commits a delict whilst solely or
partially about the business of the employer, the application
of the
principle of vicarious liability generally presents no problem. Thus,
the employer would ordinarily be liable for damages
caused by, for
instance, the negligent driving of a delivery man whilst on a private
detour on the way back to work after having
made the delivery
instructed by the employer, or an assault committed by a bouncer
whilst removing a troublesome patron from his
employer’s pub.
Difficulties arise when the employee commits an intentional wrong
entirely for his or her own purposes.
[16]
In his majority judgment in
Rabie,
[6]
Jansen JA formulated the following test for determination of these
difficult ‘deviation’ matters:
‘
It
seems clear that an act done by a servant solely for his own
interests and purposes, although occasioned by his employment, may
fall outside the course or scope of his employment, and that in
deciding whether an act by the servant does so fall, some reference
is to be made to the servant's intention (cf
Estate
van der Byl v Swanepoel
1927
AD 141
at 150). The test is in this regard subjective. On the
other hand, if there is nevertheless a sufficiently close link
between the
servant's acts for his own interests and purposes and the
business of his master, the master may yet be liable. This is an
objective
test.’
[17]
This test was not met with universal approval in subsequent decisions
of this court.
[7]
However, in
K
[8]
the Constitutional Court had occasion to consider this area of the
law. O’Regan J extensively reviewed the leading South
African
and foreign judgments on the subject. In respect of the latter
reference was, inter alia, made to the judgments of the
Canadian
Supreme Court in
Bazley
v Curry
[9]
and
Jacobi
v Griffiths
[10]
delivered on the same day, as well as the subsequent judgment of the
House of Lords in
Lister
v Hesley Hall Ltd.
[11]
Incidentally all three of these cases dealt with vicarious liability
for the sexual abuse of children by their caretakers.
[18]
Having had regard to s 39(2) of the Constitution, O’Regan J
developed the law upon the foundation provided in the majority
judgment in
Rabie
, in these terms:
‘
[44].
From this comparative review, we can see that the test set in
Rabie
,
with its focus both on the subjective state of mind of the employees
and the objective question, whether the deviant conduct is
nevertheless sufficiently connected to the employer’s
enterprise, is a test very similar to that employed in other
jurisdictions.
The objective element of the test which relates to the
connection between the deviant conduct and the employment, approached
with
the spirit, purport and objects of the Constitution in mind, is
sufficiently flexible to incorporate not only constitutional norms,
but other norms as well. It requires a court when applying it to
articulate its reasoning for its conclusions as to whether there
is a
sufficient connection between the wrongful conduct and the employment
or not. Thus developed, by the explicit recognition
of the normative
content of the objective stage of the test, its application should
not offend the Bill of Rights or be at odds
with our constitutional
order.
Application
to facts of this case
[45]
The common-law test for vicarious liability in deviation cases as
developed in Rabie’s case and further developed earlier
in this
judgment needs to be applied to new sets of facts in each case in the
light of the spirit, purport and objects of our Constitution.
As
courts determine whether employers are liable in each set of factual
circumstances, the rule will be developed. The test is
one which
contains both a factual assessment (the question of the subjective
intention of the perpetrators of the delict) as well
as a
consideration which raises a question of mixed fact and law, the
objective question of whether the delict committed is “sufficiently
connected to the business of the employer” to render the
employer liable.’
[19]
It bears emphasising that a sufficiently close link must exist
between the wrongful act of the employee on the one hand and
the
business
or
enterprise
of the employer on the other.
This supple concept accords with the objective nature of the second
part of the test. The purpose
of the development of the law in
Rabie
and
K
was to provide redress to a victim against an
employer even though the wrongful act did not in any manner
constitute the exercise
of the duties or authorised acts of the
employee, if it was objectively sufficiently linked to the business
or enterprise of the
employer. Thus, references to a link with the
duties, authorised acts or employment of the employee should in this
context be avoided.
[20]
But when would a sufficiently close link with the business of the
employer be established in matters of this kind? A convenient
starting point is the principle that this link would not be
established when the business of the employer furnished the mere
opportunity
to the employee to commit the wrong.
[12]
The enquiry may not be reduced to a mere ‘but for’
causation analysis.
[13]
If,
for example, an employee assaults a co-employee or customer whilst on
duty and at the workplace over an entirely private matter,
the
employer would in the absence of any other consideration not be
vicariously liable.
[21]
Something more than a mere opportunity or ‘but for’
causal link is required. What that is, would depend on the
factual
circumstances and normative considerations relevant to each case and
on whether, in the light thereof, the rule should
be further
developed. This brings me to a consideration of the role that should
be played by the creation of the risk of harm by
the business of the
employer.
Development
of the law
[22]
In an oft-quoted passage in the judgment in
Feldman,
[14]
Watermeyer CJ said the following:
‘
I
have gone into this question more fully than seems necessary, in the
hope that the reasons which have been advanced for the imposition
of
vicarious liability upon a master may give some indication of the
limits of a master’s legal responsibility, and the reasons
are
to some extent helpful. It appears from them that a master who does
his work by the hand of a servant creates a risk of harm
to others if
the servant should prove to be negligent or inefficient or
untrustworthy; that, because he has created this risk for
his own
ends he is under a duty to ensure that no one is injured by the
servant’s improper conduct or negligence in carrying
on his
work and that the mere giving by him of directions or orders to his
servant is not a sufficient performance of that duty.’
[23]
Briefly, the facts in
Rabie
were that a mechanic (Van der
Westhuizen) employed by the Minister of Police, whilst in plain
clothes and not on duty, unlawfully
arrested the plaintiff, assaulted
him and caused him to be unlawfully detained. The court accepted that
Van der Westhuizen’s
actions were actuated by malice and
‘totally self-serving and
mala fide
’. After
formulating the test quoted in para 16 above Jansen JA observed that
the leading cases at the time mostly dealt with
deviations by the
employee from his or her duties at a time that he or she was actually
engaged in the employer’s work. He
added that the tests applied
in these cases did not seem to be ‘wholly apposite’ to
the type of case before the court.
He expressed the view that a more
apposite approach to the case would be to proceed from the basis of
vicarious liability mentioned
by Watermeyer CJ in
Feldman
,
quoted above.
[24]
Jansen JA proceeded as follows:
‘
By
approaching the problem whether Van der Westhuizen's acts were done
"within the course or scope of his employment"
from the
angle of creation of risk, the emphasis is shifted from the precise
nature of his intention and the precise nature of
the link between
his acts and police work, to the dominant question whether those acts
fall within the risk created by the State.
By appointing Van der
Westhuizen as a member of the Force, and thus clothing him with all
the powers involved, the State created
a risk of harm to others, viz
the risk that Van der Westhuizen could be untrustworthy and could
abuse or misuse those powers for
his own purposes or otherwise,by way
of unjustified arrest, excess of force constituting assault and
unfounded prosecution. Van
der Westhuizen's acts fall within this
purview and in the light of the actual events it is evident that his
appointment was conducive
to the wrongs he committed.
It
is not necessary in the present case to define the limits of
liability based on the creation of risk in this context. Suffice
it
to say that in the particular circumstances of the present case and
in the light of the aforegoing the State, in view of the
risk it
created, should be held liable for Van der Westhuizen's wrongs.’
[25]
In
Ngobo,
[15]
however, the following was said, amongst other things, about the
reasoning of the majority in
Rabie
:
‘
Put
another way, having regard to Van der Westhuizen's intention and the
facts proved, "approaching the problem . . . from
the angle of
risk" would appear to be the only basis on which vicarious
liability could be said to arise from Van der Westhuizen's
misconduct. But what is regarded as an underlying
reason –
perhaps the main one – for attaching vicarious liability to
the employer, namely, the creation of risk (also known as "risk
liability"), has hitherto never been regarded in our law as the
consideration which determines whether such liability is proved.’
[26]
I respectfully disagree with this
dictum
. First, as I have
explained, Jansen JA formulated a broad two-stage test for vicarious
liability of employers in deviation cases.
The second stage entails
the objective establishment of a sufficiently close link between the
wrong and the business of the employer.
In applying the test to the
facts of the particular case, the court employed the creation of risk
by the employer’s business
as a criterion, albeit a decisive
one, to determine whether the required link existed.
Rabie
did
not hold that the creation of risk was the only consideration in this
analysis nor did it propound so-called ‘risk liability’.
[27]
Second, although it is no doubt correct that the reason for a rule is
not the same as the rule itself, I can conceive of no
reason why the
creation of the risk that produced the harm could in these
circumstances not constitute both a policy reason for
the rule and a
criterion for the application thereof.
[16]
As I shall show, this is accepted by the highest courts in Canada and
the United Kingdom.
[28]
The principles for determining whether an employer is vicariously
liable for an employee’s unauthorised intentional wrong,
laid
down in the ground-breaking unanimous judgment in
Bazley
(per
McLachlin J), were reproduced in
K
[17]
as follows:
‘“
[C]ourts
should be guided by the following principles:
(1)
They should openly confront the question of whether liability should
lie against the employer, rather than obscuring the decision
beneath
semantic discussions of ‘scope of employment’ and ‘mode
of conduct’.
(2)
The fundamental question is whether the wrongful act is
sufficiently
related
to conduct authorized by the employer to justify the
imposition of vicarious liability.
Vicarious
liability is generally appropriate where there is a significant
connection between the
creation or enhancement
of a risk and
the wrong that accrues therefrom, even if unrelated to the employer’s
desires. Where this is so, vicarious
liability will serve the policy
considerations of provision of an adequate and just remedy and
deterrence. Incidental connections
to the employment enterprise, like
time and place (without more), will not suffice.
.
. . .
(3)
In determining the sufficiency of the connection between
the
employer’s creation or enhancement of the risk
and the
wrong complained of, subsidiary factors may be considered. These may
vary with the nature of the case. When related to
intentional torts,
the relevant factors may include, but are not limited to, the
following:
(a)
the opportunity that the enterprise afforded the employee to abuse
his or her power;
(b)
the extent to which the wrongful act may have furthered the
employer’s aims (and hence be more likely to have been
committed
by the employee);
(c)
the extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employer’s
enterprise;
(d)
the extent of power conferred on the employee in relation to the
victim;
(e)
the vulnerability of potential victims to wrongful exercise of the
employee’s power.”
(Emphasis in original.)’
[29]
In
Lister
,
the House of Lords reversed previous authority and adopted the ‘close
connection’ test. All five members of the court
delivered
speeches in the matter. In
The
Catholic Child Welfare Society and others v Various Claimants
(FC) and
The Institute of the Brothers of Christian Schools and others,
[18]
the United Kingdom Supreme Court dealt with yet another case of
vicarious liability for sexual abuse of children by their caretakers.
Lord Phillips, writing for the court, analysed the speeches in
Lister
and concluded:
[19]
‘
It
is not easy to deduce from
Lister
the precise criteria that
will give rise to vicarious liability for sexual abuse. The test of
“close connection” approved
by all tells one nothing
about the nature of the connection.’
[30]
Lord Phillips also referred to subsequent English cases. He had
extensive regard to
Bazley,
Jacobi
and
the subsequent judgment of the Supreme Court of Canada in
John
Doe v Bennet
[20]
and concluded:
‘
86.
Starting with the Canadian authorities a common theme can be traced
through most of the cases to which I have referred. Vicarious
liability is imposed where a defendant, whose relationship with the
abuser put it in a position to use the abuser to carry on its
business or to further its own interests, has done so in a manner
which has created or significantly enhanced the risk that the
victim
or victims would suffer the relevant abuse. The essential closeness
of connection between the relationship between the defendant
and the
tortfeasor and the acts of abuse thus involves a strong causative
link.
87.
These are the criteria that establish the necessary “close
connection” between relationship and abuse. I do not
think that
it is right to say that creation of risk is simply a policy
consideration and not one of the criteria. Creation of risk
is not
enough, of itself, to give rise to vicarious liability for abuse but
it is always likely to be an important element in the
facts that give
rise to such liability.’
[31]
These judgments show that it is now firmly established in Canada and
the United Kingdom that the creation of a risk that eventuated,
is an
important consideration in determining vicarious liability of an
employer under the ‘close connection’ test.
The reasoning
in these judgments is compelling and provides valuable guidance for
the development of our similar law on the subject.
[21]
Leading South African academic commentators also support this
proposition.
[22]
[32]
For these reasons our law as developed in
Rabie
and
K
,
should be further developed to recognise that the creation of risk of
harm by an employer may, in an appropriate case, constitute
a
relevant consideration in giving rise to a sufficiently close link
between the harm caused by the employee and the business of
the
employer. Whether the employer had created the risk of the harm that
materialised, must be determined objectively.
Application
of the law to the facts
[33]
As I have said, Mr Khumalo caused the death of the deceased entirely
for his own purposes. The question is whether, on the
particular
facts and circumstances of this case, the murder of the deceased was
nevertheless sufficiently closely linked to Stallion’s
enterprise.
[34]
The temporal and spatial factors that Mr Khumalo was on sick leave at
the time and did not commit the murder at his workplace,
tend to
diminish the link between Stallion’s enterprise and the death
of the deceased. Also, the evidence did not establish
a connection
between Stallion’s business and the possession of the firearm
by Mr Khumalo.
[35]
I should mention at this point that Stallion did not contend that it
was of significance that Mr Khumalo formed the subjective
intention
to kill only after the robbery and after he had left the Bidvest
premises. In my view this stance is correct. The sufficiency
of the
link must be established objectively and the murder was objectively
inextricably linked to the robbery committed at the
head office.
[36]
On the other hand, Stallion furnished Mr Khumalo with much more than
a mere opportunity to commit the wrongs in question. It
enabled him
to enter into and exit from the office area without detection or
concern on the part of Bidvest. He was so enabled
by: the intimate
knowledge of the layout and the security services at the premises;
the instruction to make unannounced visits
to the premises at any
time; the knowledge that the deceased would be working late; and,
most importantly, the possession of the
override key to the office
area. This special position created a material risk that Mr Khumalo
might abuse his powers. This risk
rendered the deceased vulnerable
and produced the robbery and consequently the murder.
[37]
In addition, Stallion undertook the contractual duty to provide
24-hour access control services at the premises. There can
be no
doubt that the purpose of these services was to protect the Bidvest
staff and property from harm. Thus, Stallion was contractually
burdened with the responsibility to protect the constitutional rights
to personal safety of the employees of Bidvest, including
the
deceased, whilst at their workplace. Stallion placed Mr Khumalo in
charge of discharging this responsibility. This factor provides
a
significant normative link between Stallion’s business and the
harm suffered by Ms Van Staden.
[38]
Although the matter is by no means free of difficulty, I am not
persuaded that the court a quo erred in holding that a sufficiently
close link had been established between the business of Stallion and
the death of the deceased. It follows that the appeal cannot
succeed.
Ms Van Staden did not ask for the costs of two counsel.
[39]
The appeal is dismissed with costs.
________________________
C
H G van der Merwe
Judge
of Appeal
APPEARANCES
For
Applicant: R Stockwell SC
Instructed
by:
Norton
Rose Fulbright South Africa Inc., Sandton
Webbers,
Bloemfontein
For
Respondent: P G Cilliers SC, with him P A Venter
Instructed
by:
Van
Eden Attorneys, Pretoria
Lovius
Block Attorneys, Bloemfontein
[1]
Feldman
(Pty) Ltd v Mall
1945 AD 733
at 762.
[2]
See also
Minister
of Police v Rabie
1986
(1) SA 117
(A) at 126E and 132G-H.
[3]
See the judgment of Watermeyer CJ in
Feldman
,
fn 1 above, at 737-740 and
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC) paras 21-23.
[4]
Hern v
Nichols
90 ER 1154.
[5]
At 740.
[6]
Fn 2 above at 134C-F.
[7]
See
Minister
of Law and Order v Ngobo
[1992] ZASCA 172
;
1992
(4) SA 822
(A) at 830D-832D;
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport
2000 (4) SA 21
(SCA) para 5;
Ess
Kay Electronics Pte Ltd & another v First National Bank of
Southern Africa
Ltd
2001 (1) SA 1214
(SCA) paras 7-10. See, however,
Minister
van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors
2002 (5) SA 649
(HHA) at 659B-G.
[8]
Fn 3 above.
[9]
Bazley
v Curry
[1999] 2 SCR 534.
[10]
Jacobi
v Griffiths
[1999] 2 SCR 570.
[11]
Lister
v Hesley Hall Ltd
[2002] 1 AC 215 (HL); 2001 (2) All ER 769.
[12]
See
Bazley
,
fn 9 above, at 558-559;
Lister
,
fn 11 above, paras 25, 45 and 81-82.
[13]
See
Jacobi
,
fn 10 above, at 581.
[14]
At 741.
[15]
Fn 7 above at 831D-F.
[16]
See Professor Anton Fagan’s article ‘The Confusions of
K
’,
published in
Undoing
Delict: The South African Law of Delict under the Constitution
(2018) at 77-78, where he explains that the assertion that the rules
of vicarious liability are not to be confused with the reasons
for
them, does not entail endorsement of a rule that when applying the
rules of vicarious liability, a court may not consider
the reasons
for those rules.
[17]
Paragraph 38.
[18]
The
Catholic Child Welfare Society and others v Various Claimants
(FC)
and The Institute of the Brothers of Christian Schools and others
[2012] UKSC 56.
[19]
Paragraph 74.
[20]
John
Doe v Bennet
[2004] 1 SCR 436.
[21]
See
K
,
fn 3 above, para 35.
[22]
See J Neethling
Neethling-Potgieter-Visser
Law of Delict
7
ed (2015) at 396-397.